Business Opportunity: U.S. EPA’s Solicitation for Small Business Innovation Research

The United States Environmental Protection Agency (U.S. EPA) is calling for small businesses to apply for Phase I awards up to $100,000 to demonstrate proof of concept environmental technology. The solicitation is open the U.S. companies that have a ground-breaking idea that can be commercialized. The areas of interest to the U.S. EPA with respect to funding can be found below.

CLEAN AND SAFE WATER

  • Sampling devices for microplastics
  • Technologies for the rehabilitation of water infrastructure
  • Technologies for the destruction of PFAS in water and wastewater
  • POU treatment for opportunistic pathogens
  • Technologies for detection and treatment of antibiotic resistant bacteria in wastewater
  • Treatment for cyanobacteria and cyanotoxins in drinking water
  • Resource Recovery for Decentralized Wastewater Systems

AIR QUALITY

  • Air monitoring technology for Ethylene Oxide
  • Air monitoring technology for Sulfur Dioxide

LAND REVITALIZATION

  • Mining site characterization and remediation

HOMELAND SECURITY

  • 3-D Gamma Camera to Map Radiological Contamination
  • Water distribution and stormwater system sensors

SUSTAINABLE MATERIALS MANAGEMENT

  • New Applications for Industrial Non-Hazardous Secondary Materials
  • Preventing Food Waste

SAFER CHEMICALS

  • Safer paint and coating removal products

Phase II Funding and Deadline for Applications

Successful Phase I companies are eligible to apply for Phase II funding, which awards up to $400,000 for two years with a commercialization option of up to $100,000, to further develop and commercialize their technologies.

Last year, the U.S. EPA awarded Small Business Innovation Research (SBIR) Phase I contracts to 23 small businesses across the United States to develop technologies that provide sustainable solutions for environmental issues. These SBIR Phase I recipients are creating technologies that improve water infrastructure, air quality and homeland security.

More information on the solicitation can be found here. Applications are due by July 31, 2019.

Training for CBRNe & HazMat incidents at mass public events

Written by Steven Pike, Argon Electronics

Preparing civilian first responders and military teams for the threat of possible chemical, biological, radiological, nuclear or explosive (CBRNe) attacks is a top priority for countries around the world.

The very nature of CBRNe threat detection, however, all too frequently relies on the ability to monitor and manage the ‘invisible’ – which can present unique challenges for both trainees and their trainers.

And the landscape in which CBRNe events can take place is ever expanding, as perpetrators exploit soft civilian targets at mass public gatherings – evidenced by the Easter bombings in Sri Lanka in 2019, the terrorist attack at the UK’s Manchester Arena in 2017 or the Boston Marathon bombing in April 2013.

When training for these types of mass public CBRNe incidents, the challenge for instructors is to be able to authentically replicate the environment and conditions that are typical of large-scale public areas – be it a music stadium, sports arena or religious venue.

The value of CBRNe training exercises

Realistic, hands-on exercises can provide a useful opportunity for trainees to practice carrying out their roles, and to gain familiarity and confidence with their CBRN detector equipment.

The more life-like the exercise, the greater the likelihood that the participants will become fully engaged in ‘alert’ mode rather than simply remaining in an ‘exercise’ mindset.

But while authenticity is valuable, it is also crucial to ensure that in creating these realistic scenarios there is no risk of harm to the participants, the trainers, the environment or the public at large.

Selecting the optimum training method

As we have explored in previous blog posts, traditional methods of CBRNe and HazMat training (such as those that incorporating Live Agents or simulants) can have their limitations.

The use of live simulants, for example, can often only be detected at very close range, which means the training scenarios can lack realism.

In addition, many simulated substances are not well suited to being used in repeated training exercises, due to the practical issue of managing residual contamination.

Electronic simulator detectors, however, offer a safe and practical alternative – by replicating the appearance, feel and functionality of actual detectors and by responding to safe electronic sources.

CBRNe training in action

With the use of electronic simulation equipment, it is possible to conduct realistic and easily repeatable training exercises that present no risk of harm to the personnel or the environment in which they are operating.

In one recent case study, the use of an inventory of electronic simulators was seen to vastly enhance the realism of a large-scale CBRNe training exercise that was conducted by the Bristol Police at the Bristol City Football Ground.


About the Author

Steven Pike is the Founder and Managing Director of Argon Electronics, a leader in the development and manufacture of Chemical, Biological, Radiological and Nuclear (CBRN) and hazardous material (HazMat) detector simulators. He is interested in liaising with CBRN professionals and detector manufacturers to develop training simulators as well as CBRN trainers and exercise planners to enhance their capability and improve the quality of CBRN and Hazmat training.

Researchers to study Arctic Spill Response and Clean-up

Researchers from Dalhousie University recently received $523,000 in Canadian federal government funding to investigate strategies to better separate oil from water and examine the risk of spills in the Canadian Arctic Archipeligo.

As climate change accelerates the melting of sea ice in the Arctic, the Northwest Passage could become a significant route between the Pacific and North Atlantic oceans. With the potential of increased Arctic vessel traffic, the Government of Canada is investing in science and research to ensure that we are prepared in an event of a spill.  

One research project funded under this program will test new methods to remove oil from water for greater efficiency during a cleanup. The other project will use advanced technology to help responders locate and identify spills, while minimizing harm to the marine environment. This new science and data will be important to inform decision makers and will help accelerate efficient decision making capacity. 

The two researchers that will be heading the investigation are Dr. Haibo Niu, and Dr. Lei Liu.

Dr. Niu currently works at the Department of Engineering, Dalhousie University. Haibo does research in Civil Engineering, Environmental Engineering and Ocean Engineering. His most recent research paper is entitled A Comprehensive System for Simulating Oil Spill Trajectory and Behaviour in Subsurface and Surface Water Environments.

For the Arctic research project, Dr. Niu is trying to develop a computer model that will predict the movement of an oil spill so responders know where it’s going and what it threatens.

Dr. Liu’s major research interests include coupled simulation-optimization modeling for groundwater management, site remediation system design, modeling of air/water/waste pollution control systems, and environmental risk assessment. He also has exposure to areas of regional environmental systems planning and management, climate-change impact assessment and adaptation planning, GIS and its application to environmental information systems, system dynamics, and uncertainty analysis.

The federal government is funding Dr. Liu’s project that will involve trying to find a way to use existing membrane technology to filter oil from oily waste water collected on board vessels during a spill cleanup. The goal is to create a unit carried on board to remove oil, allowing clean water to be discharged at sea rather than carried back to shore for treatment.

The projects are funded under the $45.5 million Multi-Partner Research Initiative, which aims provide the best scientific advice to respond to spills in Canadian waters. The initiative connects leading researchers both in Canada and around the world. These efforts will improve our knowledge of how spills behave, how to contain them and clean them up, and how to minimize their environmental impacts.

How does After Action Review benefit HazMat training?

Written by Steven Pike, Argon Electronics

Emergency response teams are constantly looking for ways to improve their operations.

Simulated exercises, training classes and seminars can all provide valuable insight into tactics and technologies that can be applied in real life HazMat incidents.

However unless feedback on incident response and command is recorded (and can be easily shared with personnel), a valuable learning opportunity can risk being lost.

An effective way to enhance learning outcomes is through the use of a post-incident critique or After Action Review (AAR).

An AAR is a structured means of analyzing what took place during a particular training exercise or event to identify strengths, weaknesses and areas for improvement.

As well as providing a method to scrutinize the actions that occurred, an AAR is also an opportunity to consider what could have been done differently – both by those who took part in the exercise and by those who were in charge.

The evolution of AAR

The origins of After Action Review can be found in the US military where formal AARs evolved out of the combat action debriefs that were carried out during World War Two and the Vietnam war.

The use of AAR in a military context has also been documented in the memoirs of Chinese military leader Gong Chu’s during the 1934-1938 three-year war in South China; and by Emperor Napolean’s Marshall’s and Generals in the early 19th century.

Military AARs fall into two types – formal AARs (which require detailed planning, preparation and resources) and informal AARs (which take the form of on-the-spot reviews of individual or group training performance).

Over the years, a wide variety of public health and emergency management agencies have recognized the value of AARs – using them within training programs to aid better understanding of the perspectives and expectations of all involved and to capture crucial learning that can be widely shared.

One potential challenge with any form of realistic HazMat training exercise is that much can be going on in a relatively short time-frame. When the exercise ends, participants can sometimes find that many of the events, and the associated learning opportunities, have become a “blur” in their minds.

A 2018 article in the online magazine FireEngineering.com discussed how taking a “stop-and-start” approach to full-scale HazMat training exercises can help to cement learning. By breaking up the scenario into several smaller sections with regular breaks for review, there is the opportunity to discuss what’s just happened, to explore alternative tactics, to quickly correct any misunderstandings and to enhance exercise efficiency.

In addition there is also the advantage of being able to ensure that departmental procedures and guidelines are being followed, and that they are modified when necessary.

The application of AAR in simulator detector technology

The integration of AAR capability into simulator detector technology has been shown to reveal important lessons that improve professional practice, minimize risk and enhance communication.

When we think about AAR in the context of a simulator detector, it is the technology within the device itself (rather than a human) that maintains a record of all the activity.

The simulator version of the LCD3.2 Chemical Hazard Detector (the LCD3.2e) is just one example of a device that keeps a record of all real-time trainee movement – from the initial set-up of the equipment through to the completion of the exercise.

Once the scenario has concluded, the instructor is able to easily switch the device to display a detailed (and indisputable) performance report.

AAR is a powerful and constructive way to obtain valuable knowledge that can improve processes and enhance training efficiency – be it in the form of constructive group discussion, via fact-finding exercises or by harnessing the intelligent technological capability of simulator detectors.

The process of regularly critiquing can serve as a powerful tool for understanding the impact of one’s actions and effecting change.

And by regularly comparing the “expected outcome” with what “actually happened”, adjustments and improvements can continually be made, to improve safety at both an individual and an organizational level.

About the Author

Steven Pike is the Founder and Managing Director of Argon Electronics, a leader in the development and manufacture of Chemical, Biological, Radiological and Nuclear (CBRN) and hazardous material (HazMat) detector simulators. He is interested in liaising with CBRN professionals and detector manufacturers to develop training simulators as well as CBRN trainers and exercise planners to enhance their capability and improve the quality of CBRN and Hazmat training.

Environmental Due Diligence And Managing Environmental Risk – Part 1: Overview Of Saskatchewan Environmental Regulatory Landscape

Written by Christopher J. Masich, McKercher LLP

Today environmental due diligence and managing environmental risk are fundamental aspects of most (if not all) commercial transactions. Whether acting for developer, buyer, seller, purchaser, lessor, lessee, or financier, and whether in the context of M&A, real estate, project development or otherwise, some form of environmental due diligence or environmental risk management is necessary. Due diligence leading to the discovery of environmental liability (or even the potential of environmental liability) often causes an instinctive negative reaction. Fortunately, proper environmental risk management may be the difference between closing a transaction with economic success or not. To ensure economic success, it is incumbent upon legal counsel to assist clients in completing environmental due diligence and managing environmental risk.

This Resource Update is the first of a series of updates that will summarize the range of possible environmental issues, the patchwork provincial and federal regulations in Saskatchewan, the differences among Saskatchewan’s key industries, and the nuances of each type of commercial transaction. A prerequisite to any discussion of environmental due diligence and environmental risk management is a strong understanding of environmental regulations and potential liabilities that exist at common law in Saskatchewan. These are discussed in this Resource Update.

The Saskatchewan Environmental Regulatory Landscape

Environmental regulation in Saskatchewan is a patch-work of provincial and federal legislation administered by several government departments. While the management and protection of the environment in Saskatchewan is principally (but not exclusively) provided for under The Environmental Management and Protection Act, 2010, many environmental matters and industries with environmental impacts may also be regulated under the following Saskatchewan legislation and regulations promulgated under these Acts:

  • The Agricultural Operations Act
  • The Cities Act
  • The Conservation Easements Act
  • The Crown Minerals Act
  • The Dangerous Goods Transportation Act
  • The Ecological Reserves Act
  • The Environmental Assessment Act
  • The Environmental Management and Protection Act, 2010
  • The Fire Safety Act
  • The Fisheries Act (Saskatchewan), 1994
  • The Forest Resources Management Act
  • The Heritage Property Act
  • The Management and Reduction of Greenhouse Gases Act
  • The Mineral Resources Act, 1985
  • The Mineral Industry Environmental Protection Regulations, 1996
  • The Municipalities Act
  • The Natural Resources Act
  • The Oil and Gas Conservation Act
  • The Pest Control Act
  • The Pipelines Act, 1998
  • The Provincial Lands Act, 2016
  • The Sale and Lease of Certain Lands Act
  • The Public Health Act, 1994
  • The Reclaimed Industrial Sites Act
  • The Saskatchewan Employment Act
  • The Water Security Agency Act
  • The Weed Control Act
  • The Wildlife Act, 1998
  • The Wildlife Habitat Protection Act

This list is illustrative only and not exhaustive of all Saskatchewan environmental legislation, and not inclusive of applicable Federal legislation. Once due diligence has been “scoped” based on the particular industry and transaction, legal counsel and environmental consultants will fully review applicable Saskatchewan and Federal legislation.

In addition to Government legislation and regulation, environmental liability may be based on traditional common law tort claims of private and public nuisance, riparian rights, strict liability, trespass, negligence and negligent misrepresentation, deceit and fraudulent misrepresentation, breach of the duty to disclose, breach of the duty to warn, breach of fiduciary duty and waste. The following is a brief summary of each of these common law tort claims.

  • Private Nuisance. Private nuisance provides that a defendant may not cause substantial or unreasonable interference with the plaintiff’s use and enjoyment of its land.
  • Public Nuisance. Public nuisance is broader than private nuisance in that it confers a right of action for damages arising from the defendant’s use of its land even though no rights to the plaintiff’s land have been affected, but is restricted in that a plaintiff can only claim if it has suffered special or particular damage over and above that suffered by the public at large.
  • Riparian Rights. Riparian rights protect a plaintiff’s right to the flow of waters over its property without serious alteration in quantity or quality.
  • Strict Liability (Rylands v. Fletcher). Strict liability is a tort that varies slightly from negligence, nuisance and trespass. It generally requires the use of the land to be ‘non-natural’, followed by an escape, leading to mischief and compensable damages.
  • Trespass. Trespass is any invasion of property however slight and, in the context of environmental trespass, it must be proven that the defendant intentionally caused the contaminant to enter the plaintiff’s land.
  • Negligence and negligent misrepresentation. A successful claim of negligence requires the plaintiff to prove that the defendant breached a duty of care owed to the plaintiff, which caused the plaintiff to suffer damages.
  • Deceit or fraudulent misrepresentation. Fraudulent misrepresentation occurs when a defendant knowingly makes a false representation with the intent to deceive the plaintiff, and the representation induces the plaintiff to act, resulting in damages.
  • Breach of the duty to disclose. Similar to fraudulent misrepresentation, a party may be under a duty to disclose information that would be a benefit to the other party. This duty generally arises under the scope of a fiduciary duty, but may also exist under certain contractual relationships, such as real property transactions and lease transactions.
  • Breach of duty to warn. In certain contexts, there is a specific duty to warn that exists separate and apart from the duty to disclose and fiduciary duty. The duty to warn arises when facts or circumstances exists which may cause another person physical damage or harm. In the context of the environment, this duty may arise in manufacturer product liability cases or with the mishandling of hazardous substances.
  • Breach of fiduciary duty. The fiduciary duty is a special duty of utmost good faith and includes a duty of confidentiality and a duty to make full disclosure.
  • Waste. In lessor and lessee relations, a lessee may not commit waste against the lessor’s reversionary interest. Waste in this sense causes lasting injury to the reversion interest and may be due to a positive act or due to neglect or omission.

Environmental claims are often grounded in contract law. It is not possible to summarize the countless ways a contractual breach may occur but, in the context of the environment, such claims tend to relate to: onsite (historic) contamination, migration of contaminants, misrepresentations, indemnity claims, actions or omissions under lease tenancies and insurance coverage denial.

In Part 2 of our series on Environmental Due Diligence and Managing Environmental Risk, we will discuss early stage planning and scoping due diligence to set parameters and establish the framework for the due diligence process – arguably the single most important task of a transaction.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.


About the Author

Christopher J. Masich is a Partner at McKercher LLP practicing in the Firm’s Saskatoon office where he maintains a commercial transactions and project development practice focusing on Saskatchewan key economic sectors – energy, natural resources and agricultural. Additionally, Christopher provides special counsel on environmental risk management and environmental regulation across all industry sectors.

Nanoremediation of soil contaminated with Arsenic and Mercury

Researchers in Spain recently published a paper describing the utilization of nanoremediation technology to clean-up soil at the Brownfield site heavily contaminated with arsenic and mercury.

The research draws on a several lab-scale experiments that have shown the use of nanoscale zero-valent iron (nZVI) to be effective in reducing metal(loid) availability in polluted soils.


The core-shell model of zero-valent iron nanoparticles. The core consists of mainly zero-valent iron and provides the reducing power for reactions with environmental contaminants. The shell is largely iron oxides/hydroxides formed from the oxidation of zero-valent iron. The shell provides sites for chemical complex formation (e.g., chemosorption).

The researchers evaluated the capacity of nZVI for reducing the availability of As and Hg in brownfield soils at a pilot scale, and monitored the stability of the immobilization of these contaminants over a 32 month period. The researchers contend that their study is the first to apply nZVI to metal(loid)-polluted soils under field conditions.

In the study, two sub-areas (A and B) that differed in pollution load were selected, and a 5 m2 plot was treated with 2.5% nZVI (by weight) in each case (Nanofer 25S, NanoIron). In sub-area A, which had a greater degree of pollution, a second application was performed eight months after the first application.

Overall, the treatment significantly reduced the availability of both arsenic and (As) and mercury ((Hg), after only 72 h, although the effectiveness of the treatment was highly dependent on the degree of initial contamination.

Sub-area B (with a lower level of pollution) showed the best and most stable immobilization results, with As and Hg in toxicity characteristics leaching procedure (TCLP) extracts decreasing by 70% and 80%, respectively. In comparison, the concentrations of As and Hg in sub-area A decreased by 65% and 50%, respectively.

Based on the findings, the researchers contend that the use of nZVI at a dose of 2.5% appears to be an effective approach for the remediation of soils at this brownfield site, especially in sub-area B.

Environmental Realty of Mercury Contamination in Grassy Narrows

Written by Abimbolo Badejo, Staff Reporter

Grassy Narrows, a First Nation community of 1,600 residents, landed on the world radar due to a tragic mercury poisoning accident, made possible by lax laws regarding environmental pollution in the 1960s. Affected policies have been amended to prevent further occurrences but solutions to the poisoning effects are yet to be addressed effectively.

Government officials discovered Mercury contamination in the English-Wabigoon River in the 1970s, caused by a chemical plant at the Reed Paper Mill in Dryden Ontario. The river flows beside two First Nations communities (Grassy Narrows and Whitedog), which depend on this river as their source of livelihood. The contaminated river poisoned the fish, and this caused a shutdown of the associated fishing industry, resulting in mass unemployment for the residents. In addition, various health defects ranging from neurological disorders  to digestive disorders have been observed among the residents (spanning three generations) with no encouraging end to the defects in sight.

Studies and Plans

Since the discovery of mercury contamination in the river in the 1970s, no major action has been taken besides the establishment of a Disability Board  in 1986, which was saddled with the duty of compensating affected residents; many of whose claims for compensation were denied. After decades of delay, pressures from concerned groups (First Nations and environmental Groups) finally elicited a somewhat response from the Ontario provincial government and the Federal government. The government of Ontario stated in June 2017 that it has secured  $85 million to  clean up the contaminated water and land, while the Federal Government has agreed to put a trust fund in place to ensure the establishment of a treatment center focused on ailments related to the mercury poisoning (you can read more about mercury at quicksilver mercury). The treatment facility is expected to cost about 88.7 million dollars, as estimated after a feasibility study. 1,2

Dryden Paper Mill

Mercury in the Environment

Mercury exists in nature in either the elemental, inorganic or organic forms. The organic form of mercury (Methyl mercury) is of greatest concern in the health industry.  Elemental mercury is transformed into the organic form in the aquatic environment by microbial activity, which is in turn bioaccumulated in the flesh of aquatic organisms  along the aquatic food chain. Biomagnified toxic methyl mercury in the aquatic apex predators is transferred to consumers via efficient absorption from the digestive tracts into the blood stream and eventually through  the blood-brain barrier. Excess concentrations of methyl mercury in the human body, with concentrations above 0.47 µg/day (per kg in adult body weight) and  0.2 µg/day (per kg in a child’s or pregnant mother’s body weight), results in deleterious neurologic effects in humans of any age. Additional health defects such as impaired vision, blindness and digestive disorders have been reported.3,4

Similar tragic occurrences of environmental mercuric contamination have been reported in some parts of the world. Between 1932 and 1968, a chemical plant in Minamata, Japan released mercury into a lake which resulted in the death of over 100 people. This occurrence was highly significant, coining the name “Minamata Disease” for syndromes associated with mercury poisoning, such as brain damage, paralysis, incoherent speech and delirium. Another memorable tragedy was reported in Iraq in the early 1970s, where methylmercury compounds were use in seed treatment in agriculture. Wheat grains that were treated with this toxic compound were planted, harvested and made into flour for human consumption. Bread made from the poisoned flour resulted in high mortality rate among the consumers. Occupational exposure is not left out of the list as reported in Ghana in the 1960s. Elemental mercury is used in artisanal gold mining,  where gold ores from near-surface deposits were mixed with the elemental mercury before heating to release the toxic mercury vapour into the environment, leaving the gold behind. Breathing in the mercuric vapour can lead to severe pneumonitis in humans. 5

Clean-up of Mercury Contamination

Clean-up of mercury contaminated sites, such as Carson River Mercury site and Sulphur Bank Mercury Mine in Clearlake California, have been reported by the United States Environmental Protection Agency (US EPA) . The technology used include ex-situ and in-situ treatment methods. The most common method reported is the excavation and disposal of mercury contaminated soil or sediment, as hazardous waste meant for landfill or treated at an approved thermal treatment facility.  The excavated land is backfilled with clean soil and ecologically restored. An in-situ treatment method can be the stabilization / solidification of the toxic substance by sealing in the contaminant with a mixture of cement and Sulphur containing compounds. This method is made possible using an auger-system to mix the soil and cement to immobilize the contaminant. Contaminated sediments can be sealed by a method called “capping”, where a layer of sand and gravel  is poured over the sediments to prevent contact further with the contaminant. These methods and technologies have been used effectively at various mercury contaminated sites in the United States. More information can be found here: https://www.epa.gov/mercury/what-epa-doing-reduce-mercury-pollution-and-exposures-mercury

Ideally, post remediation monitoring  should include restriction of the sealed-off area to public access, absolute cessation in the consumption of food sourced from the contaminated areas and an active reduction in all processes that release mercury into the environment. In situations where the mercury is an unavoidable  component of an industrial waste such as dental amalgam production wastes or battery chemical wastes, a preventive-control suggestion will be to discharge the liquid waste into a holding reservoir to allow mercury-settling into sludge, which can be collected and treated or appropriately disposed.

Since there is an immense need for more research in sustainable and environmental-friendly extensive mercury spill clean-up, more attention should be focused on proactively preventing further occurrences  by adhering strictly to the controls that have been put in place to manage all operations pertaining to the use of mercury.

References

  1. https://www.cbc.ca/news2/interactives/children-of-the-poisoned-river-mercury-poisoning-grassy-narrows-first-nation/
  2. https://globalnews.ca/news/5189817/grassy-narrows-liberals-mercury-treatment-facility/
  3. Pirkle, C.M., Muckle, G., Lemire, M. (2016) Managing Mercury Exposure in Northern Canadian Communities. CMAJ, 188 (14) 1015-1023
  4. Bernhoft R. A. (2011) Mercury toxicity and treatment: a review of the literature. Journal of environmental and public health, 2012, 460508. doi:10.1155/2012/460508
  5. Bonzongo JC.J., Donkor A.K., Nartey V.K., Lacerda L.D. (2004) Mercury Pollution in Ghana: A Case Study of Environmental Impacts of Artisanal Gold Mining in Sub-Saharan Africa. In: Drude de Lacerda L., Santelli R.E., Duursma E.K., Abrão J.J. (eds) Environmental Geochemistry in Tropical and Subtropical Environments. Environmental Science. Springer, Berlin, Heidelberg

Demystifying Occupational Hygiene

Written by Abimbola Badejo, Staff Writer

At the recent Partners in Prevention 2019 Health and Safety Conference, Ontario, Canada; organized by Workplace Safety and Prevention Services (WSPS) Ontario, Canada, Dave Gardner of Pinchin Ltd. delivered a presentation on Demystifying Occupational Hygiene. Mr. Gardner is Senior Occupational Hygiene and Safety Consultant with Pinchin Ltd. Below is a summary of his presentation.

WHAT IS OCCUPATIONAL HYGIENE?

Occupational hygiene has been defined by the United States Department of Labour Occupational Safety and Health Administration as “that science and art devoted to the anticipation, recognition, evaluation, and control of those environmental factors or stresses arising in or from the workplace, which may cause sickness, impaired health and well-being, or significant discomfort among workers or among the citizens of the community.1.   Simply put, the goal of Occupational hygiene is to ensure the safety and protection of a worker at his or her workplace, provided the worker follows a set of guidelines  that have been put in place to safeguard his/her health and safety.  

Typical occupational hygiene principles include written standards, procedures and practices; workers training as part of a knowledge management program; logical thinking on the part of the creator; a combination of actions with words learned from the written standards; and total compliance with associated regulations.

WHY IS OCCUPATIONAL HYGIENE PROGRAM IMPORTANT?

An Occupational Hygiene program is of great importance as its negligence leads to occupational injuries and diseases. Occupational diseases are considered more significant due to factors associated with it; which include

  • Diseases caused by exposure to either chemical, physical or biological agents at the workplace
  • Sources such as exposure to airborne asbestos particles, confined spaces, noise, construction projects, etc.
  • Categories namely Long Latency Illness, Noise Induced Hearing Loss (NIHL), Chronic Exposure and effects and Acute Exposure and effects
  • Observable effects which are not seen until after a long duration of exposure
  •  75% of fatalities in diseases, attributed to occupational origins

The Ontario Workplace Safety and Insurance Board (WSIB) reported that approximately 130 thousand claims were filed, and about $940 million benefit costs were released, between 2008 and 2017. Occupational diseases with long latency are mostly serious and these account for only three percent of the occupational diseases with benefits.

Based on these factors (and those not mentioned), reviews have been made by the Human Resources and Skills Development Canada (HRSDC) and Labour Canada. These reviews include updates made to the Occupational Exposure Limits (OEL) of chemicals, training workers on the safe usage of materials and the equipment at the workplace, thorough knowledge of the materials and substances used at the workplace, compulsory and proper use of Personal Protective Equipment (PPE), alertness of workers to the state of their own health and compulsory medical check-ups in relation to workplace risk assessment.

CASE FOCUS: SUMMARY OF RISKS AND SURVEYS REPORTED FOR WORKERS IN THE CONSTRUCTION INDUSTRY

A survey made by the Center for Construction Research and Training regarding occupational diseases in the construction industry reported that the workers in this industry are:

  • twice as likely to have chronic obstructive lung diseases, five times more likely to have lung cancer, thirty-three times more likely to have asbestosis
  • inclined to suffer a 50% increase in Lung Cancer related deaths
  • predisposed to noise induced hearing loss (NIHL) (50% of workers)
  • susceptible to elevated levels of lead in their blood (17% of workers)
  • exposed to the allowable 8-hour exposure limit for Manganese during welding processes. This was observed with workers involved in boiler making (75%), iron-working (15%) and pipe-fitting (7%)).

In addition, a nationwide report has disclosed that 40% of WSIB costs are for construction occupational diseases, more construction workers die from a combination of occupational diseases and traumatic injuries and that 2 to 6 construction workers are more likely to develop occupational lung disease and NIHL.

As observed, most of the occupationally related diseases can be prevented by simple tasks such as hand-washing, proper use of PPE and correct compliance to defined regulations.

LEGISLATIONS GOVERNING OCCUPATIONAL HYGIENE

To ensure the protection of workers in various Canadian industries, regulations and guidelines have been put in place; some of which require compliance by either the employee or the employer. The legislations and related codes/standards guiding occupational hygiene in workplaces include:

Some of the provided regulations and guidelines are specific while others are general in application. The key to correct interpretation is to apply the correct regulation to the right workplace situation.

An example of a proper legislation application: Silica is an inert substance and an irreplaceable material in most products and buildings in the world today.  As the second most abundant mineral on the planet, silica is used in numerous ways. Getting the substance to the usable state requires processing, which exposes the worker to the respirable crystalline form. The regulation (O. Reg 490/09), listing silica as a designated substance, does not apply to the silica infused products but to the respirable fractions which the processing worker is exposed to. The regulation specifies an occupational exposure limit (OEL) for respirable crystalline silica as 0.05 mg/m3 of air (cristobalite silica) and 0.1 mg/m3 of air (quartz and tripoli silica) for an 8-hour/day or 40-hour weekly exposure. This regulation, however, does not apply to the employer or some other workers on a construction  project; but the employer’s responsibility will be to protect the worker’s health in compliance to section 25 (2)(h) of the OHSA, requiring employers to take every reasonable precaution in the circumstances to protect a worker.

FUNDAMENTALS OF OCCUPATIONAL HYGIENE

Before initiating an occupational hygiene program, a clearer understanding of basic terms is ideal.

Industrial Hygiene: this is an exercise devoted to the anticipation, recognition, evaluation, and control of those environmental stresses arising from the workplace, which may cause the impairment of a worker’s health.

Toxicology: the study of how chemical, physical and biological agents adversely affect biological systems. The adverse effects include irritation, sensitization, organ failure, diseases or cancer.

Disease, dose and exposure: Disease / response is caused by an agent dosage. Dosage is measured in relation to the exposure of the worker to an agent. Mathematically, exposure is calculated as the agent concentration multiplied by duration of exposure (concentration x time). Therefore, sampling surveys are simply estimating the exposure of the worker to a specific concentration of the agent. Exposure routes may be through inhalation, ingestion, contact or skin absorption.

Threshold Limit Values (TLV): TLVs are general concentration limit values for specific chemicals, to which a healthy adult worker can be exposed.  However, TLVs does not adequately protect all workers as their susceptibility levels to various chemicals are unique to them. TLVs are used by regulators as guidelines or recommendations to assist in the control of potential workplace hazards.

Time-Weighted Average (TLV-TWA): TWA concentration for a conventional 8-hour/day or 40-hour/week , to which a worker may be repeatedly exposed.

Short-Term Exposure Limit (TLV-STEL): This is a 15-minute TWA exposure that should not be exceeded.

Ceiling (TLV-C): This is a concentration that must not be exceeded during any part of working exposure

Air Monitoring: This is a process of sampling the air in the workplace, on a regular basis. The monitoring  may be qualitative (risk assessments, hygiene walkthroughs and training) or quantitative (air, noise and wipe sampling) in perspective.

RISK ASSESSMENT

The first focus of an occupational hygiene program is to conduct a risk assessment of the workplace processes.  A risk assessment shows that 20% of the activities or tasks  carried out, leads to 80% of  risks. Carrying out a risk assessment, focuses on the adverse effects of  a hazardous agent and the associated level of risk if a worker is exposed to it. Approaches to risk assessment include Critical Tasks Analysis (where stepwise task and risk inventories are made with the focus on worker’s safety), Process Safety (where the focus is on the process, controlling the risk to keep the worker safe) or a combination of both approaches. Risk assessment, therefore, is done  as thus:

  1. Making a list of the agents the worker is exposed to,
  2. Identifying the routes of entry,
  3. Identifying a relative risk level (low, medium or high),
  4. Documenting the control in place and its effectiveness.

Table 1. Requirements of a Hazard Reviewer. Scores are used to dictate the skill level required to assess and develop control strategies.

Risk
Score
Risk
Level
Minimum Requirements
<10 Low to Medium low Any trained employee
>10 to <20 Medium Health and Safety Department or a contracted Health and Safety Consultant
20 & above High Certified Health and Safety Professional or Industrial Hygienist (CRSP, CSP, CIH, ROH)

DEVELOPING AIR SAMPLING STRATEGIES

A preliminary survey is initially conducted using simple and common tools such as human senses (sight, taste, hear, smell, taste and gut-feelings), video camera, photo camera, tape measure and a notebook. Optional tools include velometer and smoke tubes.

Next, all knowledge and processes related to the hazardous agents are sought out using the central dogma of risk assessment (Recognition, Evaluation and Control).

The sampling itself should be done using standardized and validated methods (NIOSH, EPA, ASTM, etc.).

The extent of sampling should be determined, whether personal (breathing zone) samples or area samples.

Next, the duration of sampling should be determined, which could be  a whole day, full-shift, partial shift, single samples, sequential samples, grab or composite samples.

The worker to be sampled should be with the worker with the  highest exposure potential or a group of workers with similar exposure due to the similarity of their tasks at the workplace.

The amount of samples taken should also be determined.

The time of sampling should be determined (day or night shift, winter or summer season, etc.)

Documentation should be made at every sampling point; and this should include start and stop times, environmental conditions, chronological log of work tasks, quantified conditions during production, duration of shifts and break periods, use of PPE, engineering controls, housekeeping habits and the state of workplace ventilation.

PROGRAM DEVELOPMENT

Occupational hygiene programs are made with several guidelines governing it. According to the province of Ontario, all control programs must provide engineering controls, work practices and hygiene facilities  to control a workers exposure to a designated substance; methods and procedure should be put in place to monitor airborne concentrations of designated substances and measure workers exposure to the same; training programs should be organized for supervisors and workers on the health effects of the designated substance and the respective controls required. A typical Occupational Hygiene program, therefore, should  include the following:

  • Version history
  • Purpose / objectives
  • Scope and application
  • Distribution
  • Definitions and abbreviations
  • Roles, responsibilities and accountabilities
  • Program management (Resources, commitment and program coordinator)
  • Risk assessments
  • Exposure monitoring plans
  • Occupational hygiene surveys (sampling strategy development, analytical services, documentation and reporting )
  • Occupational hygiene controls
  • Training
  • Related document / appendices
  • Quality assurance
  • Maintenance of standard operating practices (SOPs)
  • Annual summary report.

CONCLUSION

An occupational hygiene program is an important component of workplace management. This ensures the protection of workers’ health, which leads to better and greater productivity at the workplace.  The foundation of occupational hygiene programs is to understand the principles that govern the program and knowing how to apply the principles to various situations at the workplace. Proper application and effective controls will assist in achieving the goal of establishing a safe environment for workers to operate.

REFERENCES

  1. https://www.osha.gov/dte/library/industrial_hygiene/industrial_hygiene.pdf

British Columbia Court Acquits Shipping Company for Marine Pollution Incident

Written by Jacob Jerome Gehlen and Rick Williams, Borden Ladner Gervais LLP

Introduction

On April 8, 2015, the M/V Marathassa (the “Marathassa”) discharged an unknown quantity of intermediate fuel oil into Vancouver’s English Bay. The event triggered a large-scale response, coordinated under the leadership of the Canadian Coast Guard, which removed the vast majority of oil within three days. Shoreline clean-up continued for weeks, and at least 20 migratory birds were affected.

The Crown brought criminal charges against the vessel owner, Greece-based Alassia NewShips Management Inc. (the “Owner”) and the vessel itself. In total, the Marathassa was charged with 10 pollution-related offences. The Owner did not face trial on any of the charges, as the British Columbia Court of Appeal ruled it had not been properly served with a summons. In two decisions in 2018, the British Columbia Provincial Court acquitted the Marathassa of six of these offences.

Clean-up Operations in Vancouver’s English Bay after the MV Marathassa discharged fuel (Source: https://pbs.twimg.com/media/Dy1OP0PW0AEvCb2.jpg)

On February 7, 2019, the Provincial Court gave its final judgment in the case and held that the Marathassa had successfully made out a due diligence defence for the remaining charges (R. v. MV Marathassa, 2019 BCPC 13).

This decision is significant for its discussion of the due diligence defence in the context of marine pollution.

The Decision

The remaining charges were the environmental offences of discharging a pollutant, discharging a substance that is harmful to migratory birds, failing to implement aspects of a shipboard pollution emergency plan, and failing to contain the discharged oil. All of these charges are strict liability offences, and the Crown needed only prove the acts which are the subject of the offences.

The Court found that the discharge was caused by two shipbuilder defects on the vessel. The two defects were not foreseeable to the owner or the crew and were only discovered after the leak was traced back to the area of the defects. The defects were also not foreseeable to the external auditors of the shipbuilding or to Transport Canada Inspectors. A foreign object had somehow entered a valve, preventing proper closure. The leaky valve allowed fuel oil to enter a cargo hold. During the cargo hold washing process, water was used to clean the hold and then pumped out of the hold and into the water. This process created the pollution.

Having established that the events occurred, the Court then examined the Marathassa’s defence of due diligence.

The Court noted that the Marathassa had extensive pollution prevention systems in place and had conducted careful crew selection, comprehensive spill response training, and numerous inspections. The Marathassa had been declared seaworthy by auditors and Transport Canada, and had only been operating for a few weeks at the time of the incident. Marathassa had a mistaken, honest, and reasonable belief that the vessel was seaworthy to the highest international standards.

The Marathassa was found not-guilty of all charges.

Implications

The decision serves as a useful summary of some of the steps necessary to establish a due diligence defence in the maritime pollution context, and the proper elements of “reasonable care” with regards to pollution prevention.

The decision has been criticised as demonstrating that legislative reform is needed to ensure that ship owners and vessels are held directly and criminally accountable for pollution-related offences regardless of the due diligence defence. However, to date, no such legislation has been introduced to take away the due diligence defence.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.


About the Authors

Jacob Jerome Gehlen is an associate in the Insurance and Tort Liability Group at the Vancouver office of Borden Ladner Gervais LLP. He assists clients with a variety of civil litigation matters, with an emphasis on tort liability, environmental law, insurance defence and maritime law. He has appeared before the Supreme and Provincial Courts of British Columbia.

Rick Williams is a partner in the Vancouver office of Borden Ladner Gervais LLP. He is the National Leader of the Environmental Law group and the Regional Leader of the Regulatory and Oil and Gas groups. Rick regularly represents and advises clients on the commercial, regulatory and litigation aspects of project development, permitting and operations in the energy and natural resource sectors, including land, environmental and Aboriginal issues.  Rick also represents and advises clients on dispute resolution including regulatory proceedings, corporate/commercial litigation and arbitration, with a particular focus on the areas of oil and gas, transportation, forestry and mining.

Managing Environmental Risk through Brownfield Programs When Buying or Leasing Real Property in the United States

Written by Brooke F. Dickerson, Arnall Golden Gregory LLP

American environmental laws can be daunting for a foreign investor. For example, both federal and state laws can impose strict liability, which is liability regardless of fault or intent, on the owner or tenant of a contaminated property, which is sometimes called a “brownfield property.” Such liability could lead to the imposition of penalties, the obligation to perform cleanup work, the duty to reimburse another party for its damages, or the restriction of use of the property itself, even if the contamination occurred prior to the acquisition or lease of the property or if the contamination was not caused by the owner or tenant. However, there are various methods that an entity can use to limit or avoid such liability, as well as unexpected costs, time, expenses and possibly reverse phone lookup checks. A purchaser or incoming tenant of property that could be contaminated can protect itself by performing due diligence and availing itself of one or more of these methods.

One method frequently used to manage environmental liability is participation in a “Brownfield Program.” Brownfield programs provide liability protection and other benefits to a purchaser or new tenant of real property and have been adopted by several states. Generally, brownfield programs require that a party apply for acceptance either prior to or within a short time after acquiring a property interest. Both the property and the applicant must qualify under the particular criteria for that program. In the state of Georgia, for example: (1) the property must have a preexisting release of a hazardous substance but it cannot already be subject to cleanup requirements under other environmental laws; and (2) the applicant must not be a person who contributed to the contamination or have a close relationship with a person who contributed to the contamination, and the applicant must not be in violation of any environmental order or law. The applicant must agree to adequately assess the environmental conditions of the property, if not already done, and to address any releases that exceed regulatory clean up levels; the proposed assessment and remediation work are submitted in the application as part of a proposed corrective action plan. Finally, the applicant must certify to the agency that it has achieved its corrective action plan tasks after all the work is completed.

In return, an applicant will receive a “Limitation of Liability” under the brownfield law for all of the contaminants that it assessed and/or addressed. The limitation of liability is usually granted as soon as an application is approved, conditioned on the full performance of the corrective action plan. The limitation of liability becomes final upon approval of the applicant’s certification of compliance. The scope of a limitation of liability varies by state, but usually will include protection against any claim by the government for additional cleanup as well as by a third party, such as a neighboring property owner.

Participation in a brownfield program provides several other advantages as well. Remediation requirements can be reduced according to the specific intended use of the property and likely risks of exposure to human health or the environment. A residential use will require a more strict clean up than an industrial use; consequently, the cost to clean up property for an industrial plant will be much less than the costs to clean up property to be a housing development. A prospective purchaser or tenant will have a good estimate of how much it will have to spend and how much time it will take to address environmental problems before it acquires the property, enabling better budgeting and cost evaluation. A very important benefit is that the brownfield limitation of liability runs with the land, which means that the protections pass from the initial applicant to all subsequent owners and tenants of the property. Existing brownfield protection is a significant advantage when marketing the property if and when the owner wants to sell or re-lease it.

As with the extent of liability protection, other brownfield benefits can also vary state by state. Using the Georgia program as an example, a purchaser or new tenant in the brownfield program is excused from having to address any groundwater contamination (which is often the most costly type of remediation work), and the corrective action plan can be performed autonomously, only requiring governmental involvement when the entity submits its final certification of compliance with the corrective action plan. Not being required to obtain governmental approval at various milestones will save the owner or tenant significant time in completing the project.

Many states also offer tax benefits. The Georgia brownfield program incorporates property tax abatements up to the amount of eligible brownfield costs incurred. Eligible brownfield costs include almost all expenses related to assessing the property, working with consultants, cleaning up the property, preparing and submitting all required documentation and finalizing the limitation of liability; legal fees and true construction costs are not eligible. In essence, a new property owner or tenant can get reimbursed for all of its environmental costs through tax savings and still recoup the brownfield liability protection, limitation and certainty of expenses and time, and marketing benefits for resale.

In sum, a potential purchaser or tenant might want to give a contaminated property a second look. Such an investment may yield greater returns than locating on a clean property. So if you’re looking for new property to invest in, whether clean or contaminated, you may want to think about getting cash for your house in Seattle.

This article has been republished with the permission of the authors. It was first published on the AGG website.


About the Author

Brooke F. Dickerson focuses her practice on transaction, regulatory, compliance and permitting matters. With regards to environmental work, she has significant experience with Superfund (CERCLA), hazardous waste (RCRA and HWMA), the Georgia Hazardous Site Response Act (HSRA), solid waste, Brownfields, wetlands, and site evaluation, assessment and remediation issues. She also advises clients on stormwater compliance, green leasing issues and green/sustainable building practices. With regards to construction work, Ms. Dickerson advises owners and developers on the drafting and negotiation of architect, construction and construction management agreements. She has represented clients in connection with the construction of office, multi-family, mixed use and tenant improvement projects. She also advises clients on OSHA matters and has represented several companies in obtaining reduced or dismissed penalties in settlement negotiations.